Struck by stereotype: Ruth bader ginsburg on pregnancy discrimination as sex discrimination

Duke Law Journal

Volumn 59, Issue 4, 2010, Pages 771-798

  Siegel, Neil S ^a   Siegel, Reva B ^b  

^a DUKE UNIVERSITY   (United States)

^b YALE UNIVERSITY   (United States)

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EID: 77954807261     PISSN: 00127086     EISSN: None     Source Type: Journal    
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References (150)

1. Nomination of Ruth Bader Ginsburg to Be Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 103d Cong. 206 (1993) (statement of Judge Ginsburg) [hereinafter Ginsburg Hearings].
2. See Brief for the Petitioner, Struck v. Sec'y of Def., 409 U.S. 1071 (1972) (No. 72-178), 1972 WL 135840. Melvin Wulf, Joel Gora, Brenda Feigen Fasteau, and Robert Czeisler also signed the brief. Melvin Wulf was the Legal Director of the American Civil Liberties Union (ACLU). Joel Gora was an ACLU attorney who worked on the case. Brenda Feigen (no longer Fasteau) was a cofounder of the ACLU's Women's Rights Project. Robert Czeisler was the attorney, affiliated with the ACLU in the state of Washington, who represented Captain Struck in the district court and the Ninth Circuit. His valiant lawyering kept Captain Struck in the Air Force and fighting to remain there, not discharged, as the government would have preferred. It is evident that Ginsburg's distinctive voice pervades the brief.
3. Struck v. Sec'y of Def., 409 U.S. 1071 (1972).
4. See id. at 1071 (vacating and remanding for consideration of mootness in light of the government's change in position).
5. Reed v. Reed, 404 U.S. 71 (1971). Reed invalidated under the Equal Protection Clause an Idaho law that gave automatic preference to men over women as administrators of estates. Id. at 77. Reed was handed down on November 22, 1971. The Struck brief was filed on December 4, 1972.
6. Roe v. Wade, 410 U.S. 113 (1973). The Court decided Roe on January 22, 1973, less than two months after Ginsburg filed the Struck brief.
7. Frontiero v. Richardson, 411 U.S. 677 (1973). Frontiero invalidated under the Equal Protection Clause a federal statute providing that spouses of male members of the military are dependents for purposes of obtaining increased quarters allowances and medical and dental benefits, but that spouses of female members are not dependents unless they are in fact dependent for more than one-half of their support. Id. at 692 (plurality opinion).
8. Geduldig v. Aiello, 417 U.S. 484 (1974). Geduldig upheld against an equal protection challenge a California law that provided workers comprehensive disability insurance for all temporarily disabling conditions that might prevent them from working, except pregnancy, on the ground that pregnancy discrimination was not necessarily sex discrimination. Id. at 496-97. Although laws burdening pregnant employees harm only female employees, the Court stressed that they potentially benefit a group that includes employees of both sexes. See id. at 497 n.20 ("The lack of identity between the excluded disability and gender as such under this insurance program becomes clear upon the most cursory analysis. The program divides potential recipients into two groups-pregnant women and nonpregnant persons. While the first group is exclusively female, the second includes members of both sexes. The fiscal and actuarial benefits of the program thus accrue to members of both sexes.").
9. The Court subsequently tried to apply Geduldig's reasoning to federal employment discrimination law in General Electric Corp. v. Gilbert, 429 U.S. 125 (1976).
10. Gilbert held that a disability benefit plan excluding disabilities related to pregnancy was not sex-based discrimination within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C §2000e to e-17 (2006).
11. Congress responded by enacting the Pregnancy Discrimination Amendment to Title VII (PDA), which defines discrimination on the basis of pregnancy as discrimination on the basis of sex.
12. See Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k).
13. Justice Ginsburg has used this or similar language in a variety of settings, both on and off the Court. See, e.g., Gonzales v. Carhart, 127 S. Ct. 1610, 1641 (2007) (Ginsburg, J., dissenting) ("[L]egal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature.")
14. United States v. Virginia (VMI), 518 U.S. 515, 532 (1996) ("[T]he Court has repeatedly recognized that neither federal nor state government acts compatibly with the equal protection principle when a law or official policy denies to women, simply because they are women, full citizenship stature-equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities.").
15. See generally Neil S. Siegel, Equal Citizenship Stature: Justice Ginsburg's Constitutional Vision in President Obama's America, 43 NEW ENG. L. REV. (forthcoming December 2009) (participating in a symposium honoring the jurisprudence of Justice Ginsburg).
16. Id. at 9 (emphasis added) (quoting United States ex rel. Robinson v. York, 281 F. Supp. 8, 19 (D. Conn. 1968)).
17. Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971).
18. For one account of Ginsburg's legal strategy, see Deborah L. Markowitz, In Pursuit of Equality: One Woman's Work to Change the Law, 11 WOMEN'S RTS. L. REP. 73 (1989).
19. For examples of other feminist lawyers of the era who challenged pregnancy discrimination as sex discrimination, see Reva B. Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto ERA, 94 CAL. L. REV. 1323, 1385-86 (2006).
20. "In constitutional and Title VII litigation in the early 1970s, feminist lawyers including Ruth Ginsburg, Wendy Williams, and Susan Deller Ross... argu[ed] that regulations pertaining to pregnant women were sex-based, subject to heightened scrutiny, and wrongful when they enforced stereotypical understandings of women's roles." Id. Wendy Williams wrote the petitioner's brief in Geduldig, and Susan Deller Ross was pivotal "in providing arguments to the EEOC that the Equal Protection Clause reached pregnancy discrimination." Id. at 1385 n.169. Ruth Bader Ginsburg and Susan Deller Ross coauthored a 1977 op-ed responding to Geduldig. See Ruth Bader Ginsburg & Susan Deller Ross, Pregnancy and Discrimination, N.Y. TIMES, Jan. 25,1977, at A33 ("The Supreme Court decision was a stunning rejection of the position that had been taken by the Federal Equal Employment Opportunity Commission and six Federal courts of appeals. These authorities had identified discrimination against the pregnant worker as the essence of sex discrimination.").
21. United States v. Virginia (VMI), 518 U.S. 515 (1996).
22. Id. at 534 (citing Goesaert v. Cleary, 335 U.S. 464, 467 (1948)).
23. See, e.g., Judith Baer, Advocate on the Court: Ruth Bader Ginsburg and the Limits of Formal Equality, in REHNQUIST JUSTICE: UNDERSTANDING THE COURT DYNAMIC 216, 231 (Earl M. Maltz ed., 2003).
24. see also infra note 84 and accompanying text. See infra Part III for a discussion of substantive (that is, antisubordination) versus formal (that is, anticlassification) views of equality.
25. See Geduldig v. Aiello, 417 U.S. 484, 496-97 n.20 (1974) ("Absent a showing that distinctions involving pregnancy are mere pretexts designed to effect an invidious discrimination against the members of one sex or the other, lawmakers are constitutionally free to include or exclude pregnancy from the coverage of legislation such as this on any reasonable basis, just as with respect to any other physical condition."). On feminist arguments of the era.
26. See infra Part IV (discussing changes manifest in decades of PDA litigation, Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003), and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992)).
27. This Essay takes the facts from the Brief for the Petitioner, at 3-7. Justice Ginsburg has recounted the story of Struck on more than one occasion. See Ruth Bader Ginsburg, Remarks for the Celebration of 75 Years of Women's Enrollment at Columbia Law School, 102 COLUM. L. REV. 1441, 1447 (2002)
28. Ruth Bader Ginsburg, Speaking in a Judicial Voice, 67 N.Y.U. L. REV. 1185, 1200-02 (1992) (Madison Lecture delivered in March 1993)
29. Ruth Bader Ginsburg, Assoc. Justice, Supreme Court of the U.S., Advocating the Elimination of Gender-Based Discrimination: The 1970s New Look at the Equality Principle, Address at the University of Cape Town, South Africa (Feb. 10, 2006) [hereinafter Ginsburg, Advocating], available at http://www.supremecourtus.gov/publicinfo/speeches/sp_02-10-06.html. She also discussed Struck at her Supreme Court confirmation hearing.
30. See id. The regulation stated: The commission of any woman officer will be terminated with the least practical delay when it is determined that one of the conditions in a or b below exist... a. Pregnancy: (1) General: (a) A woman will be discharged from the service with the least practical delay when a determination is made by a medical officer that she is pregnant.... b. Minor Children: (1) General. The commission of any woman officer will be terminated with the least practical delay when it is established that she:... (d) Has given birth to a living child while in a commissioned officer status. Struck v. Sec'y of Def., 460 F.2d 1372, 1374 (9th Cir. 1971) (quoting Air Force Regulation 36-12). A 1971 amendment to the regulation provided that "Discharge Action will be cancelled if Pregnancy is Terminated." Id. at 1376 (quoting Part I.C of 1971 Amendments to Regulations).
31. Struck, 460 F.2d at 1374, 1377.
32. "[Captain] Struck's problem," Ginsburg fought the temptation to state in opening the brief, was that she "picked the wrong form of recreation in Vietnam." See Markowitz, at 81 n.100 (quoting oral statement by Ginsburg). Ginsburg held her tongue, id. at 81, presumably because she was concerned about turning off the audience.
33. See, e.g., Brief for the Petitioner, at 55 ("[P]arenthood among servicemen is not deterred, indeed additional benefits are provided to encourage men who become fathers to remain in service." (citations omitted)).
34. See infra Part II.
35. Ginsburg, Advocating, The authors have not been able to determine why Griswold feared a Supreme Court decision on the merits in Struck. They strongly suspect, however, that he perceived governmental coercion of abortion as an inadvisable context in which to vindicate the federal government's asserted interests in the area of pregnancy discrimination. The context of Struck was very much one of coercion.
36. See, e.g., Janice Goodman, Rhonda Copelon Schoenbrod & Nancy Stearns, Doe and Roe, Where Do We Go from Here?, 1 WOMEN'S RTS. L. REP. 20, 35 (1974) (discussing Struck as a case arising "[i]n the area of coercion").
37. Memorandum Suggesting Mootness, Struck v. Sec'y of Def., 409 U.S. 1071 (1972) (No. 72-178).
38. For Ginsburg's response to the motion, see Opposition to Memorandum for the Respondents Suggesting Mootness, Struck, 409 U.S. 1071 (No. 72-178).
39. Struck, 409 U.S. at 1071.
40. Reva B. Siegel, Comments, in WHAT ROE V. WADE SHOULD HAVE SAID: THE NATION'S TOP LEGAL EXPERTS REWRITE AMERICA'S MOST CONTROVERSIAL OPINION 244, 245 (Jack M. Balkin ed., 2005). For another account of Struck, see Siegel, at 1385 & n.169.
41. Geduldig v. Aiello, 417 U.S. 484, 496-97 (1974) (holding that the Equal Protection Clause permitted California to exclude from its disability insurance program the risk of disability resulting from normal pregnancy).
42. Brief for the Petitioner, at 14 (emphasis added).
43. Id. at 36. Ginsburg also observed that mandatory discharge puts a pregnant woman at a competitive disadvantage with men, "for it deprives her of opportunity for training and work experience during pregnancy and, in many cases, for a prolonged period thereafter." Id.
44. Id. at 37; see also id. ("Loss of her job and accumulated benefits profoundly affect the choices open to her. No position awaits her after childbirth and she is apt to encounter discrimination in locating new employment, this time because she is a mother. If she defers return to the labor force for an extended period, her skills will have grown rusty and, upon attempted re-entry, she will face a further barrier: this time her age as well as her sex and limited work experience will count against her." (footnote omitted)).
45. Id. at 50-51 (citation and internal quotation marks omitted); see also id. at 52 ("The discriminatory treatment required by the challenged regulation... reflects the discredited notion that a woman who becomes pregnant is not fit for duty, but should be confined at home to await childbirth and thereafter devote herself to child care." (footnote omitted)).
46. cf. Brief for Petitioner, supra note 2, at 50-51 ("[T]he regulation arbitrarily establishes a presumption of unfitness, distinguishing irrationally between pregnancy and far more debilitating physical conditions that do not occasion automatic discharge, and differentiating capriciously between a female and male who surrenders a child for adoption.").
47. see also id. at 38-45 (discussing, inter alia, Hoyt v. Florida, 368 U.S. 57 (1961); Goesaert v. Cleary, 335 U.S. 464 (1948); Muller v. Oregon, 208 U.S. 412 (1908); Bradwell v. Illinois, 83 U.S. (16 Wall.) 130 (1873)).
48. A similar sentence appears in her brief in Frontiero. See Brief of ACLU as Amicus Curiae at 34-35, Frontiero v. Richardson, 411 U.S. 677 (1973) (No. 71-1694) ("[P]resumably well-meaning exaltation of woman's unique role as wife and mother has, in effect, denied women equal opportunity to develop their individual talents and capacities and has impelled them to accept a dependent, subordinate status in society."). Ginsburg "[w]orked on Frontiero and Struck simultaneously." Letter from Ruth Bader Ginsburg, Assoc. Justice, Supreme Court of the U.S., to Neil S. Siegel (Mar. 31, 2009) (on file with authors).
49. Id. at 52 ("Imposition of this outmoded standard upon petitioner unconstitutionally encroaches upon her right to privacy in the conduct of her personal life.").
50. Griswold v. Connecticut, 381 U.S. 479 (1965).
51. Eisenstadt v. Baird, 405 U.S. 438 (1972).
52. Brief for the Petitioner, at 54 (quoting Baird, 405 U.S. at 453).
53. Id. at 55 ("[P]arenthood among servicemen is not deterred, indeed additional benefits are provided to encourage men who become fathers to remain in service.").
54. Id. (footnote omitted). In the final section of the brief, Ginsburg demonstrated myriad problems with the government's proffered rationales for the regulation: administrative convenience, contraception encouragement, hazards of the combat zone, and readiness and effectiveness of the fighting force. For example, she argued that administrative convenience was rejected in Reed as flatly insufficient to exclude women from opportunities, and that servicemen were in no way encouraged to use contraceptives. Brief for the Petitioner, at 62-65. She further noted that pregnancy triggered termination regardless of whether it occurred in a combat zone, and she suggested that the regulation would increase the potential hazards of the combat zone by making it less likely that women would quickly reveal pregnancies within a combat zone. Id. at 65-66 (citing Robinson v. Rand, 340 F. Supp. 37, 40 (D. Colo. 1972)). Finally, she noted that substantially more serious and lasting disabilities, such as drug addiction and alcoholism, did not trigger automatic discharge regardless of where they occurred. See id. at 66-69. The rationale left standing was "blatant prejudice against women for a condition peculiar to their sex." Id. at 69.
55. A wide range of scholars have discussed the antisubordination understanding of equal protection. See Catherine A. MacKinnon, Difference and Dominance: On Sex Discrimination, in FEMINISM UNMODIFIED: DISCOURSES ON LIFE AND LAW 32, 38 (1987)
56. Owen M. Fiss, Groups and the Equal Protection Clause, 5 PHIL. & PUB. AFF. 107, 151 (1976)
57. Athena D. Mutua, The Rise, Development and Future Directions of Critical Race Theory and Related Scholarship, 84 DENV. U. L. REV. 329, 336 (2006) ("Critical Race Theory's... stance is one of 'antisubordination.'")
58. Reva B. Siegel, Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles over Brown, 117 HARV. L. REV. 1470, 1472-76 (2004)
59. see also Jack M. Balkin & Reva B. Siegel, The American Civil Rights Tradition: Anticlassification or Antisubordination?, 58 U. MIAMI L. REV. 9, 10 (2003) (arguing "that the scope of the [antisubordination and aniticlassification] principles overlap, [and] that their application shifts over time in response to social contestation and social struggle")
60. Jill Elaine Hasday, The Principle and Practice of Women's "Full Citizenship": A Case Study of Sex-Segregated Public Education, 101 MICH. L. REV. 755, 769-79 (2002) (discussing different accounts of the antisubordination principle).
61. See Siegel, at 1472-73 (defining "the antisubordination principle" as "the conviction that it is wrong for the state to engage in practices that enforce the inferior social status of historically oppressed groups").
62. VMI offers the governing statement of the intermediate scrutiny standard and explains the intermediate scrutiny framework as vindicating antisubordination values. Writing for the Court, Justice Ginsburg explains that "'[i]nherent differences' between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual's opportunity." United States v. Virginia (VMI), 518 U.S. 515, 533 (1996). "Sex classifications," she instructs, "may be used to compensate women 'for particular economic disabilities [they have] suffered,'" id. (quoting Califano v. Webster, 430 U.S. 313, 320 (1977) (per curiam)), "to 'promot[e] equal employment opportunity,'" id. (quoting Cal. Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 289 (1987)), and "to advance full development of the talent and capacities of our Nation's people," id. at 533-34. But, she underscores, "such classifications may not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women." Id. at 534 (citing Goesaert v. Cleary, 335 U.S. 464, 467 (1948)). Justice Ginsburg brings this same antisubordination analytic to racial equality cases. Cf. Gratz v. Bollinger, 539 U.S. 244, 301 (2003) (Ginsburg, J., dissenting) ("The Constitution instructs all who act for the government that they may not 'deny to any person... the equal protection of the laws.' In implementing this equality instruction, as I see it, government decisionmakers may properly distinguish between policies of exclusion and inclusion. Actions designed to burden groups long denied full citizenship stature are not sensibly ranked with measures taken to hasten the day when entrenched discrimination and its aftereffects have been extirpated." (citations omitted)). The same antisubordination perspective guided Ginsburg's argument in Struck, even when she was seeking for her client the same treatment as nonpregnant service members who were temporarily disabled or about to become a parent. The animating concern Ginsburg expressed in Struck and subsequently on the bench was a concern with securing equal status, and not a formalist concern with same treatment.
63. For a classic focus on the purposes, effects, and social meanings of a practice as determinative under equal protection analysis, see Charles L. Black, Jr., The Lawfulness of the Segregation Decisions, 69 YALE L.J. 421 (1960). Professor Black wrote: "Can a system which, in all that can be measured, has practiced the grossest inequality, actually have been 'equal' in intent, in total social meaning and impact? 'Thy speech maketh thee manifest...'; segregation, in all visible things, speaks only haltingly any dialect but that of inequality.".
64. See, e.g., Ruth Bader Ginsburg, The Fear of the Equal Rights Amendment, WASH. POST, Apr. 7, 1975, at A21 ("Separate places to disrobe, sleep, perform personal bodily functions are permitted, in some situations required, by regard for individual privacy.")
65. cf. VMI, 518 U.S. at 550 n.19 ("Admitting women to VMI would undoubtedly require alterations necessary to afford members of each sex privacy from the other sex in living arrangements, and to adjust aspects of the physical training programs. Experience shows such adjustments are manageable." (citations omitted)).
66. Compare Plessy v. Ferguson, 163 U.S. 537, 551 (1896) ("We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it."), with Barack Obama, A More Perfect Union, Address at the National Constitution Center (Mar. 18, 2008), available at http://my.barackobama.com/page/content/hisownwords ("[T]he path to a more perfect union means acknowledging that what ails the African-American community does not just exist in the minds of black people; that the legacy of discrimination-and current incidents of discrimination, while less overt than in the past-are real and must be addressed.").
67. Bradwell v. Illinois, 83 U.S. (16 Wall.) 130 (1872). The Court upheld the exclusion of women from the practice of law. Id. at 139. In a concurring opinion, Justice Bradley wrote that "[t]he paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator." Id. at 141 (Bradley, J., concurring). "Although the method of communication between the Creator and the jurist is never disclosed," Ginsburg wrote in her Struck brief, "'divine ordinance' has been a dominant theme in decisions justifying laws establishing sex-based classifications." Brief for the Petitioner, at 39.
68. Brief for the Petitioner, at 35 n.29 (alteration in original) (quoting Transcript of Oral Argument at 23, Struck v. Sec'y of Defense, 460 F.2d 1372 (1971) (No. 71-1150) (statement of William N. Goodwin, J.)).
69. Similarly, Justice Ginsburg viewed a recent sex discrimination case from the perspective of the victim: The Court's insistence on immediate contest overlooks common characteristics of pay discrimination. Pay disparities often occur, as they did in Ledbetter's case, in small increments; cause to suspect that discrimination is at work develops only over time. Comparative pay information, moreover, is often hidden from the employee's view. Employers may keep under wraps the pay differentials maintained among supervisors, no less the reasons for those differentials. Small initial discrepancies may not be seen as meet for a federal case, particularly when the employee, trying to succeed in a nontraditional environment, is averse to making waves. Pay disparities are thus significantly different from adverse actions "such as termination, failure to promote... or refusal to hire," all involving fully communicated discrete acts, "easy to identify" as discriminatory. It is only when the disparity becomes apparent and sizable, e.g., through future raises calculated as a percentage of current salaries, that an employee in Ledbetter's situation is likely to comprehend her plight and, therefore, to complain. Her initial readiness to give her employer the benefit of the doubt should not preclude her from later challenging the then current and continuing payment of a wage depressed on account of her sex.
70. Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162, 2178-79 (2007) (Ginsburg, J., dissenting) (citation omitted). Congress subsequently endorsed the perspective that Ginsburg adopted in dissent. The Lilly Ledbetter Fair Pay Act of 2009 was the first bill that President Obama signed into law. See Sheryl Gay Stolberg, Obama Signs Equal-Pay Legislation, N.Y. TIMES, Jan. 30, 2009, http://www.nytimes.com/2009/01/30/us/politics/30ledbetter-web.html.
71. See Ginsburg Hearings, at 206 ("The main emphasis was on her equality as a woman, vis-a-vis a man who was equally responsible for the conception....").
72. id. ("I did think about it, first and foremost, as differential treatment of the woman, based on her sex.").
73. See id. at 205 ("[I]t has never in my mind been an either/or choice, never one rather than the other; it has been both.")
74. id. at 206 ("At no time did I regard it as an either/or, one pocket or the other issue.").
75. See Goodman et al., 34, at 35 (discussing reproductive freedom as the right to decide whether to have or not to have children without state interference, and describing Struck as a case about "coercion").
76. For an account of the feminist reproductive rights claims of the era, see, for example, Reva B. Siegel, Sex Equality Arguments for Reproductive Rights: Their Critical Basis and Evolving Constitutional Expression, 56 EMORY L.J. 815 (2007). "In these early briefs, liberty talk and equality talk were entangled as emanations of different constitutional clauses." Id. at 823.
77. See, e.g., Brief for the Petitioner, at 52 ("The discriminatory treatment required by the challenged regulation... reflects the discredited notion that a woman who becomes pregnant is not fit for duty, but should be confined at home to await childbirth and thereafter devote herself to child care. Imposition of this outmoded standard upon petitioner unconstitutionally encroaches upon her right to privacy in the conduct of her personal life." (footnote omitted)).
78. See Reva B. Siegel, Dignity and the Politics of Protection: Abortion Restrictions Under Casey/Carhart, 117 YALE L.J. 1694, 1738-45, 1763-66 (2008) (developing this insight)
79. id. at 1744-45 ("Concern that restrictions on women's liberty can communicate meanings about women's social standing lies at the heart of the sex discrimination cases, especially those cases invalidating laws that deny women autonomy to make decisions about their family roles.").
80. Justice Ginsburg has recently reemphasized the close link between constitutional equality and constitutional liberty in the area of reproductive rights. See, e.g., Gonzales v. Carhart, 127 S. Ct. 1610, 1641 (2007) (Ginsburg, J., dissenting)). Her opinion in Gonzales v. Carhart cites equal protection sex discrimination cases as support for the abortion right.
81. See, e.g., Baer, at 216, 231 ("Fourteen of the [nineteen] cases decided since Craig were brought by men. Lower court cases exhibit a similar pattern. The women's won-lost record is better than the men's; moreover, victories by men do not necessarily harm women and may benefit them. But so far men have been the primary beneficiaries of the new sexual equality doctrine. Ruth Bader Ginsburg has given no indication that this outcome troubles her. She continues to regard sex equality not as requiring the elimination of male supremacy, but as a problem of discrimination, of basing decisions on a person's sex." (footnote omitted))
82. David Cole, Strategies of Difference: Litigating for Women's Rights in a Man's World, 2 L. & INEQUALITY 33, 55 (1984) ("Ginsburg chose to litigate issues that she could frame as hurting both men and women, rather than issues, like pregnancy discrimination, where the harm fell on women alone. She sought to deny women's 'difference;' this strategy both limited her range and increased her chances for success. Ginsburg's classic argument was to insist that women were like men. She sought to show that women were similarly situated, but that society had treated them differently because of stereotypical 'old notions' and 'archaic assumptions' about sex roles.... Nevertheless, Ginsburg's assimilationist method could not address the entire range of women's rights issues. Assimilation is most obviously an insufficient response to issues of reproductive freedom. In this area, women are biologically different, and therefore women must be treated differently to be treated equally."). Ginsburg has herself summarized much of the criticism.
83. See Ruth Bader Ginsburg & Barbara Flagg, Some Reflections on the Feminist Legal Thought of the 1970s, 1989 U. CHI. LEGAL F. 9, 17 ("[Feminist legal scholars] have portrayed the 1970s litigation as assimilationist in outlook, insistent on formal equality, opening doors only to comfortably situated women willing to accept men's rules and be treated like men, even a misguided effort that harmed more women than it helped.").
84. See, e.g., Craig v. Boren, 429 U.S. 190 (1976) (declaring unconstitutional an Oklahoma law that allowed women to buy 3.2 percent beer at age eighteen but did not allow men to buy such beer until age twenty-one)
85. Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) (declaring unconstitutional a provision of the Social Security Act that allowed a woman whose husband died to receive benefits based on his earnings but did not allow a man whose wife died to receive benefits based on her earnings)
86. Moritz v. Comm'r of Internal Revenue, 469 F.2d 466 (10th Cir. 1972) (declaring unconstitutional a provision of the Internal Revenue Code that denied a deduction for dependent-care expenses to a man who never married while granting the deduction to women, widowers, divorcés, and husbands in certain circumstances). Wiesenfeld in particular was "[a] case near and dear to my heart." Ruth Bader Ginsburg, quoted in AMY LEIGH CAMPBELL, RAISING THE BAR: RUTH BADER GINSBURG AND THE ACLU WOMEN'S RIGHTS PROJECT 93 (2004). This is perhaps because a man was ready, willing, and able to raise his child in a society that deemed him perverse for wanting to do what had long been deemed "women's work."
87. For an account of these developments in race discrimination law, see generally Fiss.
88. Siegel, at 1535-38. One of the authors has explored the implications in sex discrimination law.
89. See Reva B. Siegel, "The Rule of Love": Wife Beating as Prerogative and Privacy, 105 YALE L.J. 2117, 2188-95 (1996) (showing how the Court's rejection of disparate impact claims in Washington v. Davis, 426 U.S. 229 (1976), and Personnel Administrator v. Feeney, 442 U.S. 256 (1979), shielded from equal protection scrutiny "facially neutral" practices (such as domestic violence policies) that have long played a role in subordinating women).
90. see also id. at 38-45 (discussing, inter alia, Hoyt v. Florida, 368 U.S. 57 (1961); Goesaert v. Cleary, 335 U.S. 464 (1948); Muller v. Oregon, 208 U.S. 412 (1908); and Bradwell v. Illinois, 83 U.S. (16 Wall.) 130 (1873)).
91. Cary Franklin, The Anti-Stereotyping Principle in Constitutional Sex Discrimination Law, 85 N.Y.U. L. REV. (forthcoming April 2010) (manuscript on file with the Duke Law Journal).
92. See id. at 3-4. Franklin explains that "Ginsburg derived the anti-stereotyping principle in part from... the law and politics of Sweden, which began in the early 1960s to wage an ambitious, decades-long campaign against sex-role enforcement."
93. Id. at 4. Specifically, the Swedish anti-stereotyping ideals that would powerfully impact Professor Ginsburg went far beyond insisting on formal equality between the sexes. "Proponents of jämställdhet," as this Swedish theory of gender equality was known, "believed sex classifications were often necessary in order to break down traditional conceptions of men and women's roles; their aim was not to eliminate formal sex classifications but to liberate both sexes from prescriptive sex stereotypes."
94. Id. at 17. According to Franklin, it was for this reason, and not because of strategic considerations or a commitment to formal equality, that Professor Ginsburg sought out male plaintiffs in several of the cases that she litigated. For citations to some of these cases.
95. Fiss, supra note 64, at 157 (proposing to substitute for the equal treatment principle a group-disadvantaging principle premised on a theory of "status-harm" that would inquire whether a challenged practice would "impair or threaten or aggravate the status or position of the group").
96. CATHERINE A. MACKINNON, SEXUAL HARASSMENT OF WORKING WOMEN: A CASE OF SEX DISCRIMINATION 117 (1979) (proposing that courts determining whether a practice discriminates on the basis of sex inquire "whether the policy or practice in question integrally contributes to the maintenance of an underclass or deprived position because of gender status")
97. Brown v. Bd. of Educ, 347 U.S. 483 (1954).
98. For discussions of debates about the meaning of Brown, see Christopher W. Schmidt, Brown and the Colorblind Constitution, 94 CORNELL L. REV. 203, 231-37 (2008).
99. Neil S. Siegel, Race-Conscious Student Assignment Plans: Balkanization, Integration, and Individualized Consideration, 56 DUKE L.J. 781, 830-33, 841-43 (2006)
100. See LINDA GREENHOUSE & REVA SIEGEL, ON THE ROAD TO ROE V. WADE: HOW AMERICANS TALKED ABOUT ABORTION IN THE YEARS BEFORE THE SUPREME COURT'S LANDMARK RULING (forthcoming 2010) (reproducing feminist arguments for abortion rights from 1969-73 that invoke both privacy and equality and analyze the regulation of abortion as part of the regulation of motherhood).
101. See Craig v. Boren, 429 U.S. 190, 197 (1976).
102. Particularly in light of how cultural battle lines have been drawn in the twenty-first century, it is illuminating to see Justice Ginsburg's voice deployed in the service of both the equal citizenship stature of women and one particular woman's religiously based opposition to procuring an abortion. From the vantage point of the present, it may be ironic that Ginsburg's views on sex discrimination and abortion first developed in this setting. But it serves as an instructive reminder that Americans today agree about more than they often realize.
103. Brief for the Petitioner, at 26 ("In addition to the two commonly differentiated review standards, some of the decisions of this Court suggest an intermediate standard.").
104. Id. at 29 n.24 ("It is not urged here that extensive compensatory treatment is needed to redress past discrimination against women. [A Second Circuit decision], however, indicates that in special situations compensatory treatment may be appropriate." (referencing Gruenwald v. Gardner, 390 F.2d 591 (2d Cir. 1968)).
105. See, e.g., id. at 46 ("In 1971, two legal scholars-both of them male-examined the record of the judiciary in sex discrimination cases; they concluded that the performance of American judges in this area 'can be succinctly described as ranging from poor to abominable.'").
106. Brief for the Petitioner, at 54 n.55 ("Griswold alone, or in conjunction with Baird, has been cited in numerous lower court decisions holding that women have a right to determine for themselves, free from unwarranted governmental intrusion, whether or not to bear children." (citing Roe v. Wade, 314 F. Supp. 1217 (N.D. Tex. 1970))).
107. See Lawrence v. Texas, 539 U.S. 558 (2003)
108. Romer v. Evans, 517 U.S. 620 (1996).
109. See Geduldig v. Aiello, 417 U.S. 484, 496 (1974). The Gedulgig decision reasoned: While it is true that only women can become pregnant it does not follow that every legislative classification concerning pregnancy is a sex-based classification like those considered in [Reed and Frontiero]. Normal pregnancy is an objectively identifiable physical condition with unique characteristics. Absent a showing that distinctions involving pregnancy are mere pretexts designed to effect an invidious discrimination against the members of one sex or the other, lawmakers are constitutionally free to include or exclude pregnancy from the coverage of legislation such as this on any reasonable basis, just as with respect to any other physical condition.
110. Id. at 496 n.20 (emphasis added). This much quoted passage from Geduldig is often read as denying that pregnancy discrimination is sex discrimination. In fact, the passage in question reasons that pregnancy discrimination is not always sex discriminatory or invidious, but sometimes may be. As shown in this Part, in the years since its decision in Geduldig, the Court has come to recognize that gender bias in the regulation of pregnancy is more prevalent than perhaps it first believed.
111. Robert C. Post & Reva B. Siegel, Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave Act, 112 YALE L.J. 1943, 2042 n.309 (2003).
112. Consider, for example, the likely political prospects of an attempt to repeal the PDA, which responded to Geduldig and Gilbert. Gilbert followed Geduldig's reasoning and held that a disability benefit plan excluding disabilities related to pregnancy was not sex-based discrimination within the meaning of Title VII of the Civil Rights Act of 1964. Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 136 (1976).
113. For a discussion of the PDA's role in shaping popular and judicial understandings of sex discrimination, see Reva B. Siegel, "You've Come a Long Way, Baby": Rehnquist's New Approach to Pregnancy Discrimination in Hibbs, 58 STAN. L. REV. 1871, 1897-98 (2006).
114. The Court recently discussed this case law and Congress's responses to it in AT&T Corp. v. Hulteen, 129 S. Ct. 1962 (2009).
115. There, the Court held that an employer does not necessarily violate the PDA when it pays pension benefits based in part on an accrual rule, applied only prior to the PDA's enactment, that gave less retirement credit for pregnancy leave than for medical leave generally. Id. at 1966. Only Justice Breyer joined Justice Ginsburg's passionate dissent, in which she described Gilbert as wrong-indeed, "astonishing," "egregious[]," and "aberrational"-the day it was decided. Id. at 1977, 1979 (Ginsburg, J., dissenting). All of the other Justices allowed AT&T to perpetuate pay differentials in the post-PDA period that were attributable to pregnancy discrimination that occurred in the pre-PDA period. But if seven Justices allowed AT&T to perpetuate pay differentials attributable to pre-PDA discrimination, none of them said anything in defense of Geduldig and Gilberts reasoning. In essence, the majority reasoned that the employer's discrimination was reasonable when it occurred, even if it was no longer an acceptable way to treat women. Ginsburg's characterization of Gilbert provoked no defense of the decision from any other Justice. This is in stark contrast to what commonly occurs when individual Justices speak their minds forcefully in controversial areas of law. (Consider, for instance, Justice Scalia's response to Justice Stevens regarding the constitutionality of the death penalty in Baze v. Rees, 128 S. Ct. 1520 (2008).) Both the narrow holding and the loud silences in Hulteen suggest little enthusiasm on the early Roberts Court for defending the view of the relation between pregnancy discrimination and sex discrimination espoused in Geduldig and Gilbert.
116. For a discussion of these developments from the perspective of legal doctrine, see Neil S. Siegel & Reva B. Siegel, Pregnancy and Sex Role Stereotyping, from Struck to Carhart, 70 OHIO ST. L.J. (forthcoming November 2009) (symposium essay honoring the jurisprudence of Justice Ruth Bader Ginsburg).
117. Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721 (2003).
118. Commentators have noted the magnitude of Chief Justice Rehnquist's shift in position from his early days on the Court to VMI, see United States v. Virginia (VMI), 518 U.S. 515, 558-66 (1996) (Rehnquist, C.J., concurring in the judgment), and then to Hibbs.
119. See, e.g., Linda Greenhouse, Introduction: Learning to Listen to Ruth Bader Ginsburg, N.Y. CITY L. REV. 213, 218-19 (2004)
120. Deborah Jones Merritt & David M. Lieberman, Ruth Bader Ginsburg's Jurisprudence of Opportunity and Equality, 104 COLUM. L. REV. 39, 47 (2004)
121. Siegel, at 1871-98. The evolution of the late Chief Justice's views on sex discrimination is as striking as the development of his relationship with Justice Ginsburg is endearing. During the year one of the authors spent in her chambers, she often expressed her devotion to him by calling him "the Chief" or "my Chief."
122. See, e.g., Ruth Bader Ginsburg, Constitutional Adjudication in the United States as a Means of Advancing the Equal Stature of Men and Women Under the Law, 26 HOFSTRA L. REV. 263, 267-70 (1997) (discussing, inter alia, the change in Chief Justice Rehnquist's views on sex discrimination and referring to him as "my now Chief").
123. 29 U.S.C § 2612(a)(1)(c) (2006).
124. Hibbs, 538 U.S. at 740.
125. Id. at 734. The implications of such reasoning for the scope of congressional power under Section 5 are broad indeed. See, e.g., Franklin, at 47-50 (persuasively defending the constitutionality of legislation (1) expanding the FMLA's coverage to small and midsize employers and to provide covered employees with paid leave; (2) requiring paid sick leave; (3) providing affordable childcare; and (4) addressing sex segregation in the American labor market).
126. Hibbs, 538 U.S. at 736 (quoting The Parental and Medical Leave Act of 1986: J. Hearing Before the Subcomm. on Labor-Mgmt. Relations and the Subcomm. on Labor Standards of the H. Comm. on Educ. and Labor, 99th Cong., 2d Sess., 100 (1986) (statement of Women's Legal Defense Fund)).
127. Id. (quoting The Parental and Medical Leave Act of 1986, at 100).
128. Geduldig v. Aiello, 417 U.S. 484, 496 n.20 (1974).
129. For a discussion of the Court's reasoning in Hibbs, see generally Siegel, at 1889-91.
130. For further elaboration of this reading of Geduldig, see generally Siegel & Siegel, Because the PDA is firmly entrenched, it may be unclear what would be the practical implications in the pregnancy context of recognizing pregnancy discrimination as unconstitutional sex discrimination. There might be some practical consequences in light of potential Eleventh Amendment objections to enforcing the PDA in certain settings. Yet a Court that takes Hibbs seriously would be unlikely to impose any Section 5 impediment to enforcing the PDA against the states. And a Court that does not take Hibbs seriously would be unlikely to recognize pregnancy discrimination as unconstitutional sex discrimination. Regardless, broader doctrinal implications would follow from recognizing that physical differences between the sexes are the beginning, not the end, of the constitutional conversation about women's equality. For example, Cary Franklin suggests that, after VMI and Hibbs, it no longer seems open to the federal government to assert that physical differences between the sexes justify excluding women from selective service registration, eligibility for the draft, and various combat positions.
131. See Franklin, at 51-53. Nor, she argues, does it seem permissible for the government to support programs of single-sex education that reinforce traditional sex-role stereotypes. See id. at 46-47. Nor, she astutely notes, are certain rationales for prohibiting gay marriage reconcilable with an anti-stereotyping conception of constitutional equality. See id. at 57-65.
132. See Brief for Petitioner, at 54 n.55; see also text accompanying note 101. For subsequent discussions, see generally Ruth Bader Ginsburg, Sex Equality and the Constitution, 52 TUL. L. REV. 451 (1978)
133. Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. REV. 375 (1985).
134. Roe v. Wade, 410 U.S. 113, 163 (1973) ("[F]or the period of pregnancy prior to this 'compelling' point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.")
135. id. at 164 ("For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.").
136. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992).
137. Id. at 876 (plurality opinion) ("In our view, the undue burden standard is the appropriate means of reconciling the State's interest with the woman's constitutionally protected liberty.").
138. See, e.g., id. at 852 ("Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.")
139. id. at 856 ("The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.")
140. id. at 897 (stating that the views expressed in Bradwell and Hoyt "of course, are no longer consistent with our understanding of the family, the individual, or the Constitution").
141. Gonzales v. Carhart, 127 S. Ct. 1610 (2007).
142. See, e.g., Neil S. Siegel, The Virtue of Judicial Statesmanship, 86 TEX. L. REV. 959, 1014-30 (2008).
143. Carhart, 127 S. Ct. at 1641 (Ginsburg, J., joined by Stevens, Souter, and Breyer, JJ., dissenting) (citing Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 STAN. L. REV. 261 (1992), and Sylvia Law, Rethinking Sex and the Constitution, 132 U. PA. L. REV. 955, 1002-28 (1984))
144. see also, e.g., Siegel, at 837-38 (situating Justice Ginsburg's opinion in Carhart in a survey of sex equality arguments for reproductive rights)
145. Cass R. Sunstein, Editorial, Ginsburg's Dissent May Yet Prevail, L.A. TIMES, Apr. 20, 2007, at A31 (noting that in Carhart, Justice Ginsburg "attempted to re-conceive the foundations of the abortion right, basing it on well-established constitutional principles of equality").
146. Carhart exemplifies the often real but notoriously blurry distinction between constitutional politics and constitutional law. On the one hand, opponents of abortion have used the issue of so-called partial-birth abortion to undermine the abortion right in general, see Siegel, at 1707-09, and the Carhart Court effectively overruled precedent in order to uphold a federal ban on the procedure, see Siegel, at 1020-21. On the other hand, the Court reasoned that the ban could survive a facial challenge because the procedure was sufficiently distinct from abortion in general and did not impose an undue burden on the right to abortion. Carhart, 127 S. Ct. at 1627. For one attempt to understand the ragged relationship between constitutional politics and constitutional law.
147. see generally Robert C. Post & Neil S. Siegel, Theorizing the Law/Politics Distinction: Neutral Principles, Affirmative Action, and the Enduring Legacy of Paul Mishkin, 95 CAL. L. REV. 1473 (2007).
148. One of the authors has explored this relationship in more depth. See generally Siegel, (conceiving law as an institution that must account for the conditions of its own legitimation)
149. Neil S. Siegel, Umpires at Bat: On Integration and Legitimation, 24 CONST. COMMENT. 701 (2007) (identifying ways in which judges, especially Justices, act not as "umpires" but as engaged participants in the constitutional culture of the nation).
150. For a discussion of Justice Kennedy's relevant views, see generally Siegel.